Out of the US before Advanced Parole

[curiousGeorge]

I asked my lawyer about this also, and I am sad to report, that I was right. She outright abandoned her I-485 by doing this. I also remember my lawyer explaining this to me when I was adjusting status from TN status to Green card. He stressed to make sure that I would not travel between the time that I applied for I-485 and the time that my AP was approved.

http://www.hpolatsek.com/forum3/index.php?p_lng=&p_days=30&p_cmd=entry&p_entry=581

TheRealCanadian,
She was legally admitted, you are correct. But by claiming TN Status upon entry, this voids her I-485 application, because TN is explicitly not a dual intent status. Had she entered in H or L, the I-485 would still be active because those visas allow for dual intent.

 

[bianchi]

THEREALCANADIAN HELP - TN to GreenCard -Urgent

Hello here is my situation:

-I am a Canadian citizen
-TN Visa due to expire end of July.
-Married to US citizen this past year.
-Applied for I-485, I-765, I-130 and was recieved by INS for processing in April.
-Went to Canada on TN visa and returned to USA before receiving EAD card or Advanced Parole (They were still processing).
-Company lawyer is saying that my I-485, I-765, etc are considered abandoned because I left with no Advanced Parole (even though I was on TN visa)
-Lawyer now wants to apply for new TN Visa and then wants to re-apply for I-485, 765, etc after a year.


Is this true? Do I have any other options? Basically my company will not emply me on my EAD because they are aware I left the country prior to my Advanced Parole.

Please help.
Thank you.

 

[TheRealCanadian]

I asked my lawyer about this also, and I am sad to report, that I was right. She outright abandoned her I-485 by doing this. ... But by claiming TN Status upon entry, this voids her I-485 application, because TN is explicitly not a dual intent status. Had she entered in H or L, the I-485 would still be active because those visas allow for dual intent.

The beautiful thing about lawyers is that they can say whatever they want. According to one attorney I had (fortunately I never paid for), the visa stamp exemption for Canadians doesn't exist!

I don't believe she explicitly abandoned the I-485 by re-entering as a TN, since the whole abandonment issue comes from the fact that you cannot typically be readmitted on anything but an H/L/AP after the I-485 has been filed. The dual intent aspects of the H/L allow for re-entry - there's nothing in the dual intent portion of the INA that preserves an I-485. The only thing that preserves the I-485 is your being legally in the US.

However, she has been legally (albeit probably improperly) admitted - and my bet is that the I-485 is still alive.

 

[TheRealCanadian]

Lawyer now wants to apply for new TN Visa and then wants to re-apply for I-485, 765, etc after a year.

Company lawyer wants extra filing and legal fees.

You have been legally admitted, your EAD is good. Until USCIS revokes the I-485 and the EAD, it's a legal document, and there is NO point reapplying for the I-485 until (if) USCIS denies the first one. Besides, leaving without AP isn't an issue. My wife left while she was technically out of status, returned back as a POE H-4 and got her I-485 approved with no issues.

 

[curiousGeorge]

your EAD is good.

TheRealCanadian,
How can you give this misleading advice in the face of 3 lawyers who advised the contrary. My lawyer, has no filing fees to gain by this advise by the way as you claimed, since its not even his case!! You continue to contradict the advice of all three lawyers mentioned in this thread!!! WHY?!?!?

You are blatently WRONG. Stop misleading people.

 

[TheRealCanadian]

How can you give this misleading advice in the face of 3 lawyers who advised the contrary. My lawyer, has no filing fees to gain by this advise by the way as you claimed, since its not even his case!! You continue to contradict the advice of all three lawyers mentioned in this thread!!! WHY?!?!? You are blatently WRONG. Stop misleading people.

I'm not wrong. The problem your assertion faces is that what one, three, or one million attorneys state is of no relevance to the case. The only thing that matters is what USCIS thinks.

Can you or these exalted attorneys cite a single portion of statute, regulation or case law that supports this assertion?

The fact remains that this is an extremely esoteric area of immigration law - it's a case where the alien beneficiary has been legally but probably improperly admitted in a non-immigrant classification that does not have explict dual-intent protections. Note my use of explicit - a TN can be applied for and approved in the presence of an approved I-140, so it does benefit from dual-intent as defined before the INA of 1990.

Bianchi's lawyer is being stupid. He's being stupid because if he applies for a TN again, the Service Center will immediately deny it because of the filed, pending (and in their opinion, valid) pending I-485. The filing will be a total waste because USCIS insists that the I-485 is valid.

If it makes you all feel better, he can file the TN renewal again. USCIS will reject it, citing the pending I-485. That'll be official proof that the adjustment is still alive. Why anyone would want to withdraw the I-485, place an unnecessary delay of a year in the GC process and then file the GC all over again is beyond me.

It's particularly baffling when it's entirely supported by anything official out of USCIS, and just the idle musing of three attorneys who've probably never heard of such a case before in their lives.

 

[curiousGeorge]

The only thing that matters is what USCIS thinks.

That's true. It would be very unfortunate to find out these posters followed your advice, only to find out a year or two down the road that USCIS considers their I-485 has as abandoned, and denies their case, without an option to appeal when they could have easily taken action at this point to rectify the situation.

Can you or these exalted attorneys cite a single portion of statute, regulation or case law that supports this assertion?

I understand your mistrust for professionals in the immigration industry such as immigration attorneys, but in this case its 3 professional opinions against your unprofessional opinion, so I'll flip this back to you to do some citing of the law, if you will.

a TN can be applied for and approved in the presence of an approved I-140, so it does benefit from dual-intent as defined before the INA of 1990.

Dual intent does not have any bearing on I-140. The applicant of an I-140 is the sponsoring company, not the individual with the TN Filing for, or having an approved I-140 does not in any way display immigrant intent by this individual. It only shows that the company wishes to SPONSOR an individual. It does not explicitly show that the individual wishes to immigrate. Immigrant intent is only explicitly displayed when the TN individual applies to IMMIGRATE. This request is performed by filing an I-485, or by applying to have a consular interview, and not by filing an I-140.

It's particularly baffling when it's entirely supported by anything official out of USCIS, and just the idle musing of three attorneys who've probably never heard of such a case before in their lives.

Do you have more experience with this situation than the 3 attorneys mentioned? I doubt that. You are knowledgeable, I agree, but you're not an attorney, nor do you personally have any experience with this particular situation either. You adjusted your status from an H1b, not from TN status.

I hate this to turn into a bickering contest, so I'm going to stop now because I do highly respect your opinion TheRealCanadian, but since you haven't really provided anything of value except your interpretation of the law, I think in this case you need to re-evaluate your suggestions. I verified my opinion with an unbiased legal professional just to be sure, and I provided a link to his response. Show me the proof from a professional, and then maybe we can continue this, otherwise, I believe you've overstated your opinion.

For the original poster, I suggest you check with your attorney again, and if you're still not sure, check with some other reputable pros like Joseph Grasmick, Sheela Murthy, Rajiv Khanna, or even my lawyer Franklin Blanco.

www.grasmick.com
www.murthy.com
www.immigration.com
www.hpolatsek.com

 

[TheRealCanadian]

I understand your mistrust for professionals in the immigration industry such as immigration attorneys, but in this case its 3 professional opinions against your unprofessional opinion, so I'll flip this back to you to do some citing of the law, if you will.

That's my point - there is no explicit statute, regulation or memorandum which that states that that an I-485 is automatically abandoned if one re-enters the US without an H/L/AP. The only requirement for an I-485 is that one be legally in the US when it is approved, which our original poster is.

Dual intent does not have any bearing on I-140. The applicant of an I-140 is the sponsoring company, not the individual with the TN Filing for, or having an approved I-140 does not in any way display immigrant intent by this individual.

You have got to be kidding me. You do realize, of course, the question on the I-129, I-539 and DS-156 that asks if an immigrant petition has been filed on behalf of the alien? If you wish to go around saying that being the beneficiary of an approved immigrant visa petition doesn't constitute immigrant intent, be my guest, but don't turn around and question my interpretation of immigration law.

Immigrant intent is only explicitly displayed when the TN individual applies to IMMIGRATE. This request is performed by filing an I-485, or by applying to have a consular interview, and not by filing an I-140.

Considering that the ETA-750 that the I-140 is based upon, and is submitted at the time of the I-140 is filed has the alien's signature on it, that's a rather interesting assertion.

You adjusted your status from an H1b, not from TN status.

What do the specific facts of my immigration experience have to do with my knowledge of this subject? I've been aware of the ability to adjust from TN for years now, and I've been posting at some of the forums you cite for almost a decade. Post at the grasmick forum, and see if Jim Eiss will respond.

 

[TheRealCanadian]

I noticed the post on the Grasmick forum. We'll see what others have to say on the matter there.

 

[Jaggy]

From attorney Murthy

Following is from attorney Murthy

Thank you for your eMail. An individual holding TN status does not share the
same opportunity to have dual intent that one holds for an H1B. While the
regulations do permit an individual to leave the U.S. after having filed an
I-485 in H1B status, and thereafter return in H1B status, and still have the
I-485 continue, a person leaving and entering on TN status would abandon
their I-485.

 

[curiousGeorge]

I noticed the post on the Grasmick forum. We'll see what others have to say on the matter there.

TheRealCanadian,
That's 4 attorneys now, and the Grasmick forum also. They all say if you enter the US using a TN it voids your I-485.

What else do you need to be convinced that you're wrong?

 

[TheRealCanadian]

TheRealCanadian,
That's 4 attorneys now, and the Grasmick forum also. They all say if you enter the US using a TN it voids your I-485.

If you look carefully, you'll notice that none of the forum regulars, nor any of the attorneys that participate there, responded to the post. The responses were, "I don't know what you should do, but you sound screwed."

What else do you need to be convinced that you're wrong?

I'm not convinced I'm wrong. I'm still fairly certain that USCIS will consider the I-485 active, because there is no statute or regulation that considers the I-485 abandoned if entering in another non-immigrant status.

Because of that, I think the TN renewal will be immediately denied, and USCIS will issue FP notices and process the I-485 like it was still alive. However, one should do what they see fit. At the end of the day, I think they'll end up filing a new TN - getting it denied, a new I-485 and then see the original I-485 approved without issues.

That's my prediction.

 

[curiousGeorge]

That's my prediction.

Bianchi,
Please remember to come back to immigrationportal.com to tell us how your story continues. Disagreeing with TheRealCanadian makes my stomach ache.

 

[TheRealCanadian]

Please remember to come back to immigrationportal.com to tell us how your story continues. Disagreeing with TheRealCanadian makes my stomach ache.

Me too. I just hate to see people delaying their Green Cards by a year (as one attorney hs apparently suggested) unless they had to. You and I both had to wait a long time because of a transfer - I waited almost two years from transfer to interview, and because of that I would never want someone to cause a long delay unnecessarily.

I'm genuinely curious to see how things will go. One thing that Bianchi's attorney can do is write USCIS for an advisory opinion. If an alien files an I-485, leaves the US and is legally readmitted using a TN, what happens to the I-485? It doesn't have the force of law, but might give a good clue. If the attorney is an AILA member, there should be facilities for doing this through the Association.

curious, I just don't want to see this guy waste a year (or more) by being over cautious. I'd want to explore every avenue before giving up on that I-485.

 

[curiousGeorge]

One thing that Bianchi's attorney can do is write USCIS for an advisory opinion. If an alien files an I-485, leaves the US and is legally readmitted using a TN, what happens to the I-485? If the attorney is an AILA member, there should be facilities for doing this through the Association.

That might help, but don't call the 1-800 line, they often give misleading information to begin with, much less with rare situations like this one. Make sure you do it through official channels like an AILA liason as TheRealCanadian suggested to find out if in fact your I-485 is labeled as abandoned at this point or not, before taking any drastic measures like reapplying the I-485.

Worst case...if the I-485 is in fact considered to be abandoned by Bianchi according to AILA and the USCIS, wouldn't consular processing still be an option to get the case approved quickly?

 

[TheRealCanadian]

That might help, but don't call the 1-800 line, they often give misleading information to begin with, much less with rare situations like this one.

Absolutely. This would be a formal written request for an advisory opinion on a hypothetical case to INS HQ - I've seen such advisory letters in the past.

Worst case...if the I-485 is in fact considered to be abandoned by Bianchi according to AILA and the USCIS, wouldn't consular processing still be an option to get the case approved quickly?

I'm not so sure, since to get the I-140 kicked over to NVC you'd need an I-824, and those are taking forever. You cannot do an AC-140 since almost all of Montreal's visa processing including Packet IV is handled by NVC.

 

[curiousGeorge]

Read Nelson's reply on the Grasmick forum:
http://grasmick.com/board/?topic=topic1&msg=34929

 

[bianchi]

Can i re-file I-485 (Very urgent TN expired)

I am in a tough situation.

1) Applied for 485 based on marriage to US citizen - May 05
2) Left country on TN status and re-entered USA on existing TN (expires July 28 05) - July 05 (I am canadian)
3) Received EAD July 05
4) Company will not use EAD because they know the I485 will be now considered abandoned by USCIS
5) Company filed TN extension and was denied because of earlier I485 filing
6) Now I cannot work for my company and my TN has expired.

My questions are:
A) Am I legal in the USA at this time?
B) Can I re-file for I-485?
C) Is it really considered abandoned and can I find out the answer to this?

Thanks

 

[c514468]

I don't know if you actually followed curiousGeorge and TheRealCanadian's suggestions, but you need to get your own lawyer to handle your situation.

I don't know if your TN renewal was denied based on the past 485 filing or pending 485. If it's former, re-file 485. I think 245(k?) can cover you. If it's latter, you are in status. You can work on EAD.

I'm not a lawyer, so alway consult a lawyer before you do anything.

 

[curiousGeorge]

Bianchi,
Have you even read the replies from me and TheRealCanadian? Your questions seem to imply that you have not, and you are asking the exact same question..... again. But I'll humor you and answer you.....again, (although it makes me a little peeved), just in case you don't feel like reading all the replies and opinions we already gave YOU.

I am in a tough situation.

I agree. You're in a very difficult situation, but one that could have easily been avoided.

1) Applied for 485 based on marriage to US citizen - May 05
2) Left country on TN status and re-entered USA on existing TN (expires July 28 05) - July 05 (I am canadian)

You forgot to mention in this post that you reentered the US without using an Advance Parole. This is a very important point for your specific situation.

3) Received EAD July 05
4) Company will not use EAD because they know the I485 will be now considered abandoned by USCIS

Before we can answer this question we must first ask, at what point is your I-485 truly invalidated? Is it at the point of abandonment, in which case your EAD is no longer valid, or is it at the time of adjudication, which would mean your EAD would be valid until the USCIS looks at your case, and denies it due to abandonment? Your company is taking precautions, because they know now for sure that your case WILL eventually be denied, at which point your EAD will not be valid, or your EAD is ALREADY invalid. The answer nobody can tell you is WHEN your I-485 will be adjudicated and thus denied. It could be a couple of weeks, or it could take months or years. It could be today.

5) Company filed TN extension and was denied because of earlier I485 filing

This one is obvious. Once you apply for an I-485, you can no longer qualify for a TN……...ever. The fact that you got the TN at the border while your I-485 was pending was a fluke. You can't get another TN, regardless of the fact of whether your I-485 is abandoned or not. Heck, even if you had REQUESTED to cancel your I-485, you still couldn't get another TN. Even if the I-485 had gone to adjudication and was denied, you couldn't get another TN. No more TN's for you. That's it. You are never ever eligible for another TN. The fact that you got the TN at the border when your I-485 was pending was because you have the right to abandon your I-485 if you really want to by applying for a TN, and that's what you did. The officer complied with your request, and gave you the TN, but.....you also implicitly abandoning your I-485. He either figured you knew what you were doing, or he didn't even see that you had an I-485 pending because it had been filed very recently.

6) Now I cannot work for my company and my TN has expired.

That’s true you can’t use your TN to work.

A) Am I legal in the USA at this time?

This is a tricky one. Although you have put the wheels in motion to abandon this case, and your TN is expired, technically you are in I-485 status until your I-485 is either denied or approved. In this case I strongly feel, due to the opinions of 4 lawyers, that your case will be denied due to abandonment when it comes time to adjudicate your case. Until that time, you most probably are in I-485 pending status. You will be out of status at the moment your I-485 is denied. After 180 days of being out of status, you could be subject to a bar, and you would not be able to return to the US…even as a tourist.

B) Can I re-file for I-485?

There should be nothing stopping you from re-filing. In fact I would recommend that you do that ASAP before the USCIS decides to adjudicate (and deny) your current I-485 case.

C) Is it really considered abandoned and can I find out the answer to this?

If you really don't trust me, the opinions of 4 lawyers, and a whole other newsgroup filled with people who have gone through the same process, then take TheRealCanadian's advice, and have your lawyer send a formal written request for an advisory opinion on a hypothetical case to USCIS HQ. That sounds like the best advice if you’re not sure, but it may take months of precious time that you would have lost had you re-filed your I-485 right away. It’s your decision.